Custody vested in Father. The Court of Appeals affirmed the modification of a previous custody award and grant of primary physical custody of the child to the biological father, holding that evidence supported the trial court’s findings that a material change of condition affecting the welfare of the child occurred and the change in custody was in the child’s best interest. The Court held that what began as a temporary custodial arrangement when the mother moved to Oklahoma in 2004, leaving the child in the care and custody of his maternal grandmother in Missouri, and arguably could still be construed as such when the parents entered into a 2006 consent order modifying the father’s visitation rights, evolved into a permanent custodial arrangement by the time the father filed his petition for change of custody in 2009, and the mother’s voluntary surrender of physical custody and control of the child to his grandmother resulted in a material change in condition. Additional evidence supporting the finding of a material change in condition included the grandmother’s limitation of some of the father’s visitation, the exclusion of the father from important medical decisions affecting the child, and the failure to notify the father when the mother executed powers of attorney in loco parentis in favor of the grandmother. The Court also held that the trial court did not abuse its discretion in finding that the award of primary physical custody to the father was in the best interest of the child, as a prima facie right of custody is vested in the non-custodial parent when the custodial parent voluntarily surrenders custody to a third party; a rebuttable presumption provides that it is in the best interest of the child to award custody to a parent rather than a third party; and the father presented evidence that he is a fit and qualified parent to have primary physical custody and will be able to meet the needs of the child in adjusting to a new home.
If you have questions about how child custody or when Custody vested in Father – for more information, contact the Remboldt Law Firm at 404-348-4081 for a free consultation.
You may find the Georgia Child Support Worksheet helpful. Also, if you are considering an uncontested divorce, you may find the Uncontested Divorce Worksheet helpful in moving forward with an uncontested divorce.
Shotwell v. Filip, A11A1728; A11A1729 (02/13/12)
Fulton County Daily Report, February 24, 2012
Grandparent visitation rights in Georgia. How does a grandparent get visitation rights in Georgia? A plain reading of the Georgia Code, O.C.G.A. 19-7-3(b) offers two avenues by which grandparents may seek court-sanctioned visitation rights to their grandchildren. A grandparent can
(1) file an original action or they can
(2) intervene in an existing court action.
Grandparents may intervene in any action where custody of the grandchild is an issue; in the divorce of the parents or a parent; in the termination of rights case of either parent, in the termination of visitation rights of either parent; and in the adoption for the grandchild by a blood relative or by a stepparent. Grandparents may only file an original action for visitation when the parents are separated and the child is not living with both parents.
If you have questions about grandparents visitation rights in Georgia please contact the Remboldt Law Firm, LLC at 404-348-4081 for a free phone consultation.
Georgia Grandparent Rights: Effective May 1, 2012, O.C.G.A. 19-7-3 (c) was amended to include the follow provision.
In considering whether the heath or welfare of the child would be harmed without such visitation, the court shall consider and may find that harm to the child is reasonably likely to result where, prior to the original action or intervention:
(A) The minor child resided with the grandparent for six months or more;
(B) The grandparent provided financial support for the basic needs of the child for at least one year.
(C) There was an established pattern of regular visitation or child care by the grandparent with the child; or
(D) Any other circumstances exists indicating that emotional or physical harm would be reasonably likely to result if such visitation is not granted.
If you have questions about Georgia grandparent rights please contact the Remboldt Law Firm, LLC at 404-348-4081 for a free phone consultation.
Custody to the Grandparents. The Court of Appeals affirmed the judgment awarding custody of Kyung Trotter and Michael Ayers Jr.’s minor child to the child’s paternal grandparents, holding that the trial court did not apply the wrong legal standard for determining when a third party can be granted custody of a minor child over the biological parents. In so holding, the Court noted that the custody dispute arose in 2009, when the child was being raised by the paternal grandparents, having been abandoned by the father, thus the standard is predicated on O.C.G.A. § 19-7-1 (b.1), which governs custody disputes between a biological parent and a limited number of third parties who are related to the child, including grandparents. The trial court’s final custody order reflected that the trial court properly applied the correct legal standard in ruling that the presumption in favor of granting custody to the mother was rebutted by clear and convincing evidence and that the child’s best interests would be better served by awarding custody to the paternal grandparents. The Court also held that, absent a transcript, the trial court’s rulings regarding the sufficiency of the evidence and several additional alleged errors were presumably correct. Next, the trial court did not err in granting the guardian ad litem’s request for a custody evaluation, as Superior Court Rule 24.9 (8) (a) authorizes the same. Finally, the mother failed to carry her burden of showing harm from the court-appointed custody evaluator’s failure to timely provide her with a written report of the evaluation; the trial court did not err in permitting the grandparents to intervene in response to the mother’s petition seeking a change in custody; the record belied the mother’s contention that the trial court did not rule on her motion to dismiss the grandparents’ motion to intervene; and the mother’s pro se brief violated Court of Appeals Rule 25 (a) (1), because many pages of the procedural and factual background section contained no ‘ “citation of such parts of the record or transcript essential to a consideration of the errors complained of.”
Custody to the Grandparents. For more information about the facts of this case, see Trotter v. Ayers, A12A0702 (03/05/12).
Fulton County Daily Report, March 16, 2012
If you have questions about CUSTODY TO THE GRANDPARENTS, divorce settlement agreement, contempt, or if you considering filing a divorce, please contact the Remboldt Law Firm, LLC at 404-348-4081 for a free phone consultation.
The Court of Appeals reversed the denial of Bessie Hudgins’ petition for grandparents’ visitation rights as to her youngest grandchild, and remanded the case, holding that the trial court erred in finding that Echols v. Smith, 207 Ga. App. 317 (1993), and Campbell v. Holcomb, 193 Ga. App. 474 (1989), controlled this case, since the Georgia Assembly amended O.C.G.A. § 19-7-3 (b) several months after Echols to provide that a grandparent may intervene and petition for visitation following a minor grandchild’s adoption by either a blood relative or a step-parent, as occurred in this case. The Court also held that the stepfather’s adoption of the minor child, which made him the legal parent under O.C.G.A. § 19-8-19 (a) (2), did not automatically preclude Hudgins’ from seeking visitation rights, even though § 19-7-3 (b) provides that a grandparent’s original action for visitation is not authorized where the minor child’s parents are not separated and the child is living with both parents. The Court cited the recent case of Kunz v. Bailey, S11G0867 (01/09/12), 12 FCDR 79 (01/13/12), and held that the trial court erred in dismissing Hudgins’ petition, without making additional findings concerning whether the minor child’s mother and the adoptive step-father were separated and whether the child was living with both of them.
Hudgins v. Harding, A11A2247 (01/18/12)
Fulton County Daily Report, January 27, 2012
The Supreme Court affirmed the judgment of the Court of Appeals in Bailey v. Kunz, 307 Ga. App. 710, (2011), in which the Court of Appeals reversed the denial of Carrie Jean and Douglas Bailey’s motion to dismiss Robert and Royce Kunz’s petition for grandparent visitation of the Baileys’ child, who was conceived with the Kunzes’ son but later adopted by Douglas Bailey. The Supreme Court held that, pursuant to O.C.G.A. § 19-7-3 (b), grandparents can seek court-sanctioned visitation rights to their grandchild in an original action, as opposed to intervention in a custody action, only where the parents are separated or the child is not living with both parents, and the statute does not distinguish between classes of parents such as natural, adoptive or a combination thereof. Accordingly, the Court held that as a matter of law Douglas Bailey became the child’s parent when he adopted her in 2006 and the child became a stranger to her biological father and his relatives, including the Kunzes; Douglas Bailey was the child’s parent when the Kunzes filed their original visitation action; and the Kunzes had no basis for filing that action because the child was living with both her parents, the Baileys, at that time.
Kunz v. Bailey, S11G0867
S11G0867 (civil case)
January 9, 2012
BENHAM, Justice. 12 FCDR 79 (01/13/12)
Award to their maternal grandparents of permanent custody of two special needs children who had previously been adjudicated deprived, affirmed, with limited visitation to parents, as clear and convincing evidence showed that parental custody would harm children and that grandparents’ custody would best promote children’s health, welfare and happiness; while parents consistently failed to attend to children’s special needs and physical well-being, grandparents had served as children’s primary caregivers for several years, were fully cognizant of their special needs, were actively involved in securing services and therapies for children and charting their progress, and were in position due to their retirement to carefully monitor children on daily basis; for same reasons, juvenile court did not abuse its discretion in denying parents’ motion for reunification, which sought to modify or vacate unexpired deprivation order based on alleged change in circumstances.
In the Interest of D. W. and L. W., A11A1463; A11A1464; A11A1465 (09/15/11)
Fulton County Daily Report, September 30, 2011
Denial of mother’s and maternal grandmother’s motion to dismiss paternal grandparents’ petition for visitation rights or in alternative to transfer case for improper venue, reversed, as mother was not properly served with process , even though she was subject to personal jurisdiction pursuant to Georgia’s long-arm statute; clear and convincing evidence rebutted paternal grandparents’ prima facie case of proper service under long-arm statute based on sheriff’s return of service, since sheriff served mother at maternal grandmother’s prior Georgia address, even though mother was residing in Arizona at that time, and paternal grandparents submitted no evidence showing that service was proper other than sheriff’s return of service; venue was not proper in Effingham county, since maternal grandmother moved to Chatham county before paternal grandparents filed their petition; although maternal grandmother continued to utilize her former Effingham county residence address to retain certain benefits including filing temporary guardianship petition there and keeping her children in Effingham county schools, evidence showed that she was domiciled in Chatham county, so case remanded with direction for trial court to transfer it to Chatham County Superior Court.
Oglesby v. Deal, A11A1239 (09/08/11)
Fulton County Daily Report, September 23, 2011
Dismissal of petition seeking custody of plaintiff’s two minor granddaughters, reversed, as trial court erred in concluding that plaintiffs failed to state claim; petition gave fair notice that plaintiffs sought custody of children under O.C.G.A. §§ 19-7-1 (b.1) and 19-9-2 based on mother’s alleged murder of father, and these allegations were sufficient to survive motion to dismiss; collateral estoppel did not bar custody action because plaintiff’s prior unsuccessful petition for visitation involved different legal issues; res judicata did not bar custody action because O.C.G.A. § 19-9-45 only applies to issues actually decided in prior action and visitation order related to plaintiffs’ right to visitation, not custody.
Scott v, Scott, A11A1206 (09/20/11)
Fulton County Daily Report, October 7, 2011
Denial of parents’ motion to dismiss grandparents’ petition for grandparent visitation of child who was conceived with grandparents’ son but later adopted by father, REVERSED; because adoption statute’s definition of parent includes legal father of child, trial court ERRED in declining to dismiss grandparents’ motion because limiting language of O.C.G.A. 19-7-3(b) – forbidding original actions for grandparent visitation if parents are together and living with child – therefore also includes adoptive parents.
Bailey v. Kunz, A10A1809 (02/03/2011)
From: Fulton County Daily Report, 2/18/2011